Dia v Waesa [2019] PGDC 11; DC4030 (16 May 2019)

DC4030

PAPUA NEW GUIN EA

District Courts Act, Chapter 40

[In the Civil Jurisdictions of the District Court held at Wabag]

DC No 18 of 2015

Between:
Jeffrey Dia
(Complainant)

And:
Simon Waesa – a/District Administrator (Wapenamanda)
(First Defendant)

And:
The Chairman – Enga Provincial Government Land & Housing Allocations Committee
(Second Defendant)

And:
Enga Provincial Government
(Third Defendant)

Wabag/Goroka: C Inkisopo
2015: 9^th & 14^th September
2018: 16^th November
2019: 16^th May

District Courts Act Chapter No 40 – District Court – a Court of limited jurisdiction – its powers, practice and procedure set out & defined by Act –

Civil practice, procedure & jurisdiction set out in ss 21 & 22 of Act – application for an order for restraint from eviction by “un-attached” pay receiving serving public servant –

Practice & procedure – Complainant under expired Public Service Contract of Employment – Complainant an illegal tenant? - former District Administrator relieved of position & rendered un-attached – direction to vacate accommodation – subject accommodation “official residence” of Wapenamanda District Administrator – alleged continued illegal occupation of ‘official residence’ - accommodation not a condition of public service employment –

Legislation/By-laws/Rules/Regulations

1: District Courts Act, Chapter 40

2: Summary Ejectment Act, 1952

Cases Cited:

1: Herman Gawi -vs-png Ready Mixed Concrete (PNG) Pty Ltd [1984]

PNGLR 84

2: Kikia -vs- Solowet [2009] N3682

3: Southern Highlands Provincial & Local-Level Governments -vs- Kapipi & Embisi (1996) N1486

Appearances;

1: Robin Otto Yallon, Esquire

2: Michael Kambao, Esquire

Held:

1: The Complainant is not and cannot be an “illegal occupant” of the subject “Wapenamanda District Administrator’s Official residence” at Wapenamanda Station, Wapenamanda District, Enga Province.

2: The Complainant is entitled to a reprieve of a three (3) months grace period from the date of this Order within which to voluntarily vacate and yield up the subject property.

3: As costs is a discretionary matter for the Court, each party shall bear his/its own costs of this proceeding.

16^th May, 2019

JUDGMENT

C Inkisopo: The Complainant Jeffrey Dia filed proceedings before this Court by way of a Summons upon Complaint wherein he sought an Order for Restraint against the named several Defendants from an impending immediate forced eviction from a certain State property described as Wapenamanda District Administrator’s Official Residence located within Wapenamanda Station, Wapenamanda District, Enga Province.

Background Facts

2: The Complainant is a senior public servant employed as such under the Enga Provincial Administration within the Division of LLG and District Affairs. From 2005 up until late 2010, he was the District Administrator for Wapenamanda District when he was relieved of that position and made unattached and pencilled for retrenchment.

3: When these positional changes were taking place, he was still occupying t

he house (District Administrator’s Official Residence) from which he was served with notice to vacate. From the commencement period of his occupancy, he was paying rent for the house he was occupying at a nominal rate of K100.00 per fortnight. He was made un-attached so was not put to much use by the then current District Administration under the First Defendant Mr Simon Waesa (as it seemed), the incumbent was seemingly not seeing eye to eye with the Complainant; however it seemed Complainant helped out where his services were needed whilst continuing to live out from the subject residence.

4: The Complainant is from the Laiagam District, West-end Enga whilst the First Defendant Mr Simon Waesa is from Wapenamanda District, East-end Enga; Enga Province so it was quite evident that there was a fair bit of bad blood somewhere there between the Complainant and the First Defendant (who succeeded the Complainant to the post of DA Wapenamanda); and as exemplified by the extent to which the First Defendant once; when the matter was before the Court, forcefully removed the Complainant’s properties and stacking them outside the house with Police assistance; and even went to the extent of changing the locks to the subject house; literally forcing the Complainant and his family to spend several nights living under the house until the Court ordered the First Defendant to return the keys at the pains of immediate imprisonment and to allow the Complainant and his family back into the house as the case was before the Court; in that the First Defendant’s actions were simply subjudice.

5: When the Complainant initially filed this proceeding, the Court discerned a certain degree of urgency and merit in the matter of the Complainant’s claim so the Court, of its own motion issued an Interim Exparte Orders of restraint against the Defendants from executing their forced eviction notice served on the Complainant dated 6^th April, 2015.

6: During later subsequent Court appearances, Messrs Robin Yallon Lawyers appeared for the Complainant whilst Mr Michael Kambao, the Provincial Legal Officer did for the Defendants. Both Counsel lent much needed assistance to this Court by filing written Submissions for their respective Clients that helped this Court much in its decision.

7: From all the materials from the parties before this Court, the one irresistible question that stands out is;

“Is the Complainant unlawfully or illegally (without right, permission or licence) in occupation of the subject residence such that he should yield up possession and occupancy of the subject residence immediately to the Defendants and vacate?

8: In order to appreciate and attempt some plausible answers to this question, one needs to look at and consider how and under what circumstances the Complainant took up the initial occupancy of the subject residence?

9: There is no dispute nor issue as to the ownership of the subject residence; as the Complainant acknowledges that the subject residence is a State property. In any case, the legal position in this jurisdiction is clear on this point; in matters of houses or properties purporting to be State or Provincial Government or LLG owned, they need not produce titles to prove ownership for subsequent eviction actions; such being a key requirement under the relevant provision of the Summary Ejectment Act and further amplified by and given an added impetus by the oft-cited land mark case of Herman Gawi -vs- png Ready-Mixed Concrete (PNG) Pty Ltd [1984] PNGLR 74 as they (State) enjoy a special privilege of a presumption as to title in their favour. See Southern Highlands Provincial and Local-Level Governments -vs- Kapipi & Embisi (1996) N1486 per Injia J (as he then was). Hence, the ownership and title issue or otherwise of the subject residence is a non-issue for the purpose of this discussion.

10: From the materials on file; it is evident that the Complainant was installed initially as the District Administrator (DA) for Wapenamanda District of the Enga Province in 2005. On his being installed as the DA, he was then entitled to the subject residence that was back then and at all material times intended or meant to be occupied by the District Administrator of the District. Hence; for all intents and purposes, the Complainant’s initial occupation of it was perfectly and clearly lawful as he was then the incumbent DA for Wapenamanda District and by virtue of that position, he was duly entitled to occupy the subject residence up until the day he would have been formally relieved of the position, when he would consequently lose that entitlement.

11: Sadly, I find no evidence from materials on file of any such written notice from authorities within the Province relieving or terminating the Complainant from the position he was then occupying. Relieving and/or termination or otherwise of the Complainant is not the issue here; but I’m considering this point to determine the issue of the Complainant’s entitlement to continued occupancy of it (subject residence) or otherwise.

12: On file, there is no evidence demonstrating the termination of the Complainant from his position nor is there evidence of an employment contract lapsing on the Complainant with the consequential effect of him losing his entitlement to the subject residence. All we have before us as being some evidence of relevance is; the First Defendant Simon Waesa is shown and seen to be acting on the position as acting District Administrator (a/DA) for Wapenamanda District which would tell us that the Complainant no longer occupies the position of the District Administrator that he was back then occupying.

13: The net effect of all these on the Complainant regarding the subject residence would be that; though he was not given any formal notice of this positional change, the fact remained that he is an un-attached not-performing public servant still drawing his normal fortnightly salaries; an indictment on the Provincial Administration in not coming out clear on this and as to what to do with the Complainant, his case and his job/position!

14: From the evidence on file, I am led to conclude that no termination notice was formally served on the Complainant to indicate termination of him from his position with the consequential effect on his accommodation entitlements and related other issues coming to a stop. There is therefore no cut-off point for us all to take as the starting point for discussion and determination.

So the question is; “How should we conclude that the Complainant has lost his accommodation entitlement; in the absence of a clear cut cut-off time line”?

15: Or was he or is he an illegal occupier” to be dealt with as an illegal tenant and liable to being forcibly thrown out of an accommodation he assumed occupancy of rightfully in the first place by virtue of his then employment position as the DA for Wapenamanda District?

16: In Kikia -vs- Solowet [2009] N3682 per Cannings J sitting in Kimbe in an appeal from the District Court where the Respondent/Complainant father sought to evict his own grown-up sons and their respective families from his property for allegedly unlawfully living on it following some serious fallout with his sons as a result of a serious criminal matter that saw him (the father) go to jail. The District Court per his Worship Paul N’drano granted the eviction order but on appeal to the National Court, the District Court eviction Order was quashed on the ground that the Appellants were not squatting on or occupying the property illegally nor were they “illegal occupiers”; in that they as sons had equitable rights to being on the land, such a status arising from their long period of permitted occupancy as sons; which is akin to a licence to occupy it. (Paraphrased from actual judgment holding in Kikia -vs-Solowet)(Supra).

17: As being the titleholder’s four (4) grown-up children with their respective families and by virtue of their being his own sons, they were by that fact occupying the property not illegally; hence they could not be called illegal occupiers. “Illegal occupiers are people who have no right, title or licence to be on the land” (Cannings, J in Kikia -vs- Solowet) (supra).

18: In our instant case, I can perceive and glean some parallels with the Kikia case (Supra); in that the Complainant herein in my humble view cannot be called an illegal tenant; hence liable to being thrown out. Rather he in the first place did lawfully and rightfully assume occupancy of the subject Wapenamanda District’s District Administrator’s (DA’s) official residence on the basis of and by virtue of his then current position as DA, Wapenamanda District, Enga Province.

19: He would therefore, in my humble view, have an equitable right in occupying the property and therefore entitled to some reprieves rather than an immediate forced eviction. I feel fortified in this view on the strength of the case authority of Kikia -vs- Solowet (supra).

20: Mr Kambao speaking for the Defendants made a passing remark in submission on behalf of his clients that I found most intriguing; the poignant point he made that the Complainant was not entitled to continued occupation of the subject Wapenamanda DA’s ‘official residence’ because “accommodation is not a condition of public service employment”. Unfortunately, Counsel shot himself in the foot with that argument; as his client would by the same token be not entitled to accommodation as it is not a condition of Public Service employment. This point in my humble view must by any standard fade into oblivion as being baseless and without merit.

Conclusion:

21: On the basis of the above discussion, I am able to conclude that the Complainant cannot just be evicted without having due regards to his equitable rights and interest in the occupancy of the subject residence that arose from his occupation of it as THE then DA for a significant period from 2005 and still continuing in the absence of a clear-cut termination notice from the powers-be of the Province as well as the Wapenamanda District Administration.

Formal Orders of the Court:.

22: The formal Orders of this Court are;-

1: The Complainant is not and cannot be an “illegal occupant” of the subject “Wapenamanda District Administrator’s (DA’s) Official residence” at Wapenamanda Station, Wapenamanda District, Enga Province.

2: The Complainant is entitled to a reprieve of a three (3) months grace period from the date of this Order within which to voluntarily vacate and yield up possession and occupancy of the subject property to the Defendants.

3: As costs is a discretionary matter for the Court, each party shall bear his/its own costs of this proceeding.

Lawyers:

1: Robin Otto Yallon Lawyers; Lawyers for the Complainant

2: Enga Provincial Administration Legal Services Unit; Lawyers for all the Defendants,

..............................

Cosmos Inkisopo

Presiding Magistrate – Goroka, EHP

(7^th May, 2019)